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Disciplinary Hearing Gives Insight On Closed Session

In New Jersey, government meetings are open to the public with only nine exceptions where the public may be excluded from portions of a meeting. The Open Public Meetings Act (OPMA), also known as “The Sunshine Law”, gives the public the right to witness the workings of government while allowing for certain matters to be handled in what is known as ‘closed session’ or ‘executive session’. One of those exceptions deals with personnel matters related to the employment. Even in that instance, the matter may be handled publicly if the employee who could be adversely affected requests – in writing – that the matter be discussed at a public meeting.

Such an instance occurred at the June 2nd Mayor & Council meeting when a disciplinary hearing against Department of Public Works (DPW) Superintendent Mark Pasquali was held during the regular open session of that meeting.

Borough Attorney Richard Huxford announced the notice of the hearing and that Mr. Pasquali was Riced by the Borough Labor Attorney Frank Capece and that Mr. Pasquali asked for a public hearing.

Mr. Capece further explained, “I would just summarize for you briefly what will happen under the law. Number one, the Superintendent was given the right under the Rice Notice to either have a private or a public session. He requested that it be a public session and he has that right to do so. Number two, I did get a call from Councilman Meola and we discussed the matter a number of weeks ago and on that basis I made a recommendation to the mayor that there was sufficient basis to bring this matter to the governing body.”

Mr. Capece added that such a recommendation did not give credence to the formal complaint against Mr. Pasquali but that it did merit a hearing by the governing body.

The Labor Attorney continued, “Very simply, you serve tonight in what’s called an adjudicatory role. In essence, you serve, as a term you may know from private industry, akin to a hearing officer and that’s the role of the governing body tonight. ”

Councilman Meola would be allowed to present his side of the story and then there would be an opportunity for the superintendent to respond to the allegation. Afterwards, the governing body could ask either person questions and then make a decision.

Mr. Capece stated, “At the end of the process, depending on what this governing body feels, the standard you will apply is what’s called the preponderance of all the credible evidence.”

He also remarked that if disciplinary action was decided, Mr. Pasquali could appeal to the Superior Court. Mr. Capece recommended that Councilman Meola recuse himself from voting since he was bringing the matter to the governing body.

Going over the various definitions of employee insubordination, Mr. Capece cited the basis for Councilman Meola’s charge as disrespectful or insolent behavior towards a supervisor which can be speaking loudly or argumentatively to another supervisor.

Mr. Capece continued, “I told Councilman Meola the following: If you feel this rises to the level of an insubordinate conduct, it is your responsibility. I wasn’t there. I have no way of knowing. So Councilman Meola has the opportunity tonight to present to you his reasoning as to why he feels this rises to the level of insubordination applying the test that I’ve tried to articulate to you. Councilman Meola if he likes can call witnesses as can the superintendent.”

The Borough Attorney asked Mr. Capece if he would be placing both the councilman and the superintendent under oath since they will be giving factual testimony. Mr. Capece replied, “We do not have to and let me tell you why. You can, if you like, and a lot of towns do that. I don’t because this is, in fact, a departmental operation.”

With that, Councilman Meola invited Mr. Pasquali up to the microphone. Below is a transcript of the exchange between both men as well as statements made by Mr. Huxford in the capacity of a witness.

Click To Read Full Exchange

MEOLA: Mr. Pasquali, do you recall on May the 12th about 2 o’clock in the afternoon, myself calling you at the Department of Public Works?

PASQUALI: You might have. I don’t know when you called me.

MEOLA: I called you. It was 2:08, and you recall why I called you?

PASQUALI: No.

MEOLA: No, I guess you wouldn’t remember any of it. The call lasted about 30 seconds. I called you. I was very respectful. I try and be respectful because I know you might have had a hard day and I don’t know about your hard days or if you had an easy day. I don’t know anything about the DPW until you tell me. But my call was to ask you, that you had an interview questionnaire that you used for the process of asking people questions if they’re qualified for the Department of Public Works. That was going to be my question, to bring it along with you but you never gave me the opportunity to ask you to bring those questions along with you because we were going to be doing interviews on the 16th which was a Monday. Councilman Petrosky and Councilman Elmarassy were there upstairs on Monday, on the 16th. I was going to ask you to bring your questions form. When I started asking you about the process, how are we doing, you said to me, and I quote you, “The interview process is over. I chose who we’re going to hire. That’s that.” and then you just hung up the phone on me. Bam! We were done. And it was right after that I sent you an e-mail and the e-mail was also sent to Councilman Elmarassy and Councilman Petrosky and the mayor, although the mayor can’t seem to find it. I’ll resend it again just so you have it for your records and I said well I’m going to speak to you about this because I don’t like being hung up on. I didn’t call you back because I figured maybe I give you the benefit of the doubt, you had a hard day [or] somebody got on your back or something. This happens to me so I left it alone. So the next day, I called counsel and asked him his opinion on what I should do about this being I’m new on council as well. I don’t have ten years here. He said to me to bring it up on Monday and so I went upstairs with the intention of speaking with you. Do you remember who was there first? I was there then you were there.

PASQUALI: On which day?

MEOLA: On Monday the 16th.

PASQUALI: And what happened on that day?

MEOLA: It was 4 or 4:30.

PASQUALI: What happened on that day?

MEOLA: I got there. I wanted to talk to you but then the people, Joe came in and Gino came in and I said I wanted to speak to you after the meeting but we already, you already got off at a bad start. You had, I don’t know, you were mad, I don’t know why but then the attorney came in, Mr. Huxford, and it was at that time that you said to me [that] I should concentrate my efforts on the Construction Department. Stay out of DPW. Leave you alone to run it and, well I don’t want to say exactly the words you used but it was at the end you said mind my own blank-blank business and I got really floored about that because nobody has the right to tell me to mind my own blank-blank business. And then after that, Joe was pretty – Councilman Petrosky was a little bit annoyed – and he kind of said something similar to what you said [that] I should stay with the Construction Department. I can accept something like that from Mr. Petrosky because he’s on my level. I don’t accept that from you, sir. I’ve given you every benefit of the doubt but I don’t think anybody should tell me to mind my own business. This is my business. And that is where I have issue with you. Now I don’t want to… I told Mr. Capace and I told Mr. Huxford. Mr. Huxofrd, you heard that? He said yes I did. Am I correct Mr. Huxford?

HUXFORD: Councilman, at that meeting, if I could just give a little background, DPW Superintendent contacted me earlier about some concerns he had with regards to the interviewing process. He asked me to come to the upstairs conference room before you did the interviewing process and just go over, I guess, the guidelines as to the, I think there was, two individuals that were going to be interviewed that day. Yourself, Councilman Elmarassy, Councilman Petrosky, and Mr. Pasquali were already up in the conference room when I got up there a few minutes later. And I don’t know what [transpired], obviously, before I got there. When I did get there, there was some discussion as to what was the purpose of doing this interviewing process. If the questions that were going to be asked to these two people were going to be different and how fair it was going to be. The statement as to – that you reiterated – as to Councilman Petrosky focusing on DPW and yourself focusing on the Construction Department as your were liaison to that was made by the Superintendent, that’s correct.

MEOLA: In layman terms, am I wrong that he said to me that I should mind my own business?

HUXFORD: I’m going to be dead honest, I don’t remember if he said those exact words. He certainly did infer that you should focus in on the Construction Department and the issues in the Construction Department and that Councilman Petrosky, who is liaison to the DPW, was doing – was overseeing the DPW. I honestly can’t remember if he said specifically “mind your own business”, I honestly don’t remember if he said those words, but he certainly did say you’re in charge of Construction Department or words to that effect [and] you should focus in on that. He definitely did say that.

MEOLA: I just feel that you’re out of line talking to me like this and I don’t want nobody’s job or nothing like that, I just want some respect. When I call you and I want to ask you questions about things and you don’t want to answer any of them. You say “I’ll find out. I’ll let you know.” Things are coming back now. People are coming to me, they’re coming to the meeting to talk to you about things that they’ve been talking to me about, even from last year and I just can’t stand it any longer, and I’ve given you every benefit of the doubt and that’s the whole thing. I don’t like to be cursed at and told to mind my own business or hung up on. I won’t do that to you. I would never allow you to do that to anybody else here on council. If I heard that you did that to anybody else here I would be just as floored. We are up here and we took a lot of time to get here and I said to you if you feel you want to have more to say, run for office. Sit up here then you’ll be on the same level as me but you’re not going to talk down to me. You didn’t care one bit. [You said] I couldn’t care less. That’s where we are now.

In summary, Councilman Meola stated that when he called the DPW Superintendent in May to ask about upcoming interviews for open positions, Mr. Pasquali said that he as DPW Superintendent already made the choices and hung up on the councilman. At a later date he tried to speak again with Mr. Pasquali and at that time the DPW Superintendent told Councilman Meola to mind his business and used profanity.

With the councilman finished providing his assertions, the DPW Superintendent presented his comments. Mr. Pasquali, directing his words to Councilman Meola stated, “The phone conversation that you said happened, did you record the conversation?”

“Just a question,” continued the superintendent, “So then what you’re saying about the phone conversation and what I’m – if I would say anything about the phone conversation – is hearsay because there’s no proof that it ever happened.”

Finishing his side of the story, Mr. Pasquali answered, “No. That’s it.”

The Labor Attorney then reviewed with the governing body that they could now ask questions of either man and then choose an action to take or decide to take no action. If disciplinary action was decided by the governing body to be taken against Mr. Pasquali, such action could range from a reprimand – either verbal or written – to suspension. Mr. Capece clarified, “I’m not recommending anything. I want to make that clear, that’s not my role here tonight.”

Councilman Meola asked to be heard, “Can I add one last thing here? I did not come here this evening to seek retribution or financial loss for the man. I just wanted it on the record and I wanted a reprimand put in his permanent file so that, in the future, if this happens to another person, it’s a history of conduct. That’s all I wanted. I didn’t expect anybody to openly say ‘Oh, yeah sure, I hung up on you. I remember that day.’ I never expected that but I’m not lying about this. I wouldn’t waste your time with this. I was really expecting the Borough Attorney[‘s] memory to be be better but it wasn’t and that’s it so I will accept that maybe it’s just not his day. But I just, I’m not exaggerating and I’ve tried very hard to give the man the benefit of every doubt but this goes too far but I don’t want to suspend him. I don’t want him to go to counseling, go seek anything like that. I just want it in his file that this happened and if it happens again. I guess each time I do this I learned a little bit more. I talked to the man, then I have to send him e-mails. Now I have to tape record everything until finally I’ll have it all but, hopefully, I don’t have to. That’s it. I said my peace. I’m done.”

Mr. Huxford inquired about a procedural issue and asked if since there were two claims were they being separately or as one charge.

Mr. Capece answered, “In my opinion, these are both interconnected, interrelated matters and I didn’t see the need [to separate them]. This would be considered, I think for all reasonable people, a minor discipline and, as such, there’s no reason to articulate different claims . . . It’s one matter.”

Third Ward Councilman Ryan Kelly commented, “I have no reason to doubt the credibility of either party here which is kind of an issue for me, at least, to take action or make a decision when we have the credibility on both ends, in my opinion, but a lack of evidence so to speak, if we’re basing it on credibility and evidence . . . I’d personally be hard pressed to take any action at this time.”

“That’s up to this governing body to do whatever they see fit,” said Mr. Capece, “My job was when Councilman Meola raised the issue I thought it was sufficient enough to tell the mayor that I thought it was sufficient enough to bring up before the governing body. What you choose to do is not for me, humbly, to say. No one elected me to anything so I don’t have the right to say.”

Mayor Hokanson asked for a motion for any type of action, if any.

Councilman Shipley asserted, “I make a motion that there be a reprimand.”

Councilwoman-At-Large Charlene Storey seconded it.

A discussion ensued as to whether it would be a verbal or written reprimand. Councilman Shipley asked who would give the verbal reprimand. It was stated that the mayor would do it. If written, Mr. Capece stated he would prepare a short lass-than-a-page letter to have placed in the DPW Superintendent’s permanent file. The Fifth Ward Councilman stated he would be moving for a written reprimand. The councilwoman preferred a verbal reprimand but seconded the motion for a written one.

Councilman Petrosky asked if the reprimand was for hanging up or for cursing. He was reminded they were being treated a one event and it would be for both.

“There’s no proof that he hung up,” commented Councilman Petrosky.

Third Ward Councilman Ryan Kelly asked if the governing body voted for a written reprimand, what likely scenarios could play out as a result.

“Without getting to the substance of this matter,” replied Mr. Capece, “the odds are extremely remote that an official would take on the cost of [fighting] a written reprimand and the odds are, I think you’d be hard pressed in Union County to find a judge who would feel that’s what’s called a colorful claim . . . The answer to your question is pretty unlikely.”

Councilman Shipley interjected, “Can I say something? Councilman Kelly, I hear what you’re saying but – in my opinion – one of the issues that we have sometimes is [we keep] falling back on things that need to be dealt with for fear that somebody’s going to sue and that’s got to stop . . . Certain things have to be dealt with. You have to be made accountable for your actions or things just don’t get done properly.”

“I get that,” said Councilman Kelly, “But we should all be aware that we are then choosing this situation to be that starting point.”

Councilman Shipley concluded the discussion with asking, “When are you going to start?”

With that, a vote was taken and by a vote of 3-2, council voted against giving the DPW Superintendent a written reprimand. Councilmembers Shipley and Storey voted for the reprimand and Councilman Meola could not vote.

The 40-minute hearing gave insight to how council – usually behind closed doors – proceeds with personnel matters and fleshes things out and works through an issue to reach a decision. Such an open discussion is almost never able to be witnessed by the public. In fact, no one associated with present and past governing bodies in Roselle Park can recall when an employee requested an open discussion of a personnel matter. Such a rare occurrence shows that there can be debate among councilmembers without dramatics and that elected officials can disagree without being disagreeable.

Although it is understandable that some matters in government do justifiably need to be out of the public eye, such a glimpse into the behind-the-scenes process is beneficial to both the elected and those who elect.